Key Takeaway
Court ruling on no-fault and uninsured motorist subrogation requiring physical examination and prima facie proof of serious injury and medical necessity.
Allstate Ins. Co. v Cajo, 2012 NY Slip Op 50292(U)(Civ. Ct. Queens Co. 2012)
“Plaintiff’s right to commence this action did not accrue until September 9, 2011 and post-dated the filing of a notice of trial by the plaintiff.However, the defendants did not move to dismiss the action as untimely. Instead, the defendants have moved to strike the action from the calendar pending completion of discovery, specifically, a physical examination of plaintiff’s subrogor, Milagros Lopez. Although the plaintiff’s right to commence this action has now accrued, it would be unjust to permit the plaintiff to benefit from the premature commencement of the action. Therefore, the notice of trial will be vacated and the action stricken from the trial calendar.
The defendants dispute the cause and extent of the physical injuries for which the no fault benefits and uninsured benefits, sought to be recovered in this action, were paid to plaintiff’s subrogor and have served a demand for a physical examination of Milagros Lopez. The benefits paid to plaintiff’s subrogor were substantial and at her deposition she testified that she still has some pain from her injuries. Therefore, the plaintiff is required to produce Milagros Lopez for a physical examination by the physician designated by the defendants (see CPLR §3121; NYCCA § 208.13).”
So, the Plaintiff subrogee needs to prove that the subrogor (1) sustained a serious physical injury (UM benefit recovery); and (2) the medical services were medically necessary, in order to obtain a recovery in this case.
Surprisingly, there is not a lot of case on the issue involving no-fault and UM (SUM) subrogation.
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Legal Update (February 2026): Since this 2012 decision, there may have been amendments to CPLR §3121 regarding physical examination procedures and requirements, as well as potential updates to NYCCA § 208.13 governing no-fault subrogation actions. Additionally, case law developments over the past 14 years may have refined the standards for physical examinations in subrogation cases and the procedural requirements for proving serious injury thresholds. Practitioners should verify current statutory provisions and recent appellate decisions when handling similar subrogation matters.
